They are behind bars, because ignorance of the law is no defence
it was directed that investigations be carried out, during which I was taken to Industrial Area Remand as investigations continued,” he says. He was locked up for 16 months.
A doctor’s report later revealed that indeed, the girl had sex with a man, but could not categorically determine if the man was Muriungi.
Even so, he was informed that he still had a case to answer for being in a relationship with an under-age girl, and his pleas that he did not know that she was a student, under-age and sick, fell on deaf ears. They said he should have probed his girlfriend first to know her well.
On December 7, 2017, judgment was delivered and Muriungi, 33, was charged with having a relationship with an under-age, without investigating to know more about her. He was handed a 10-year jail sentence with the option to appeal.
“I was charged with attempted defilement as she was below 18 years. She had a mature-looking body, so it was hard to tell if she was under-age,” says Muriungi, whose initial incarceration in Industrial Area medium prison ended up in Nairobi West Prison a week later.
A child protection report released on March 28, 2017 by Childline Kenya, a non-governmental organisation that runs a child abuse helpline, revealed that 33,929 cases of child abuse have been reported in the last 10 years in Kenya with Nairobi County having the highest number of reported cases of all forms of child abuse.
The report, which analysed cases reported from 2006 to 2016, said that of the total number of child abuses, 7,832 were sexual abuse, almost 20 per cent of the total.
Lawyer Cliff Ombeta explains that attempted defilement is trying to penetrate the private parts of an under-age using your own organ and one cannot use the ignorance of not knowing one’s age as an excuse as it is immaterial whether one knew the age of the girl before having intercourse with her, as the burden of proof lies on the man.
“It is the man’s duty to verify the age of the girl before engaging in any sexual intercourse. The burden of proof shifts to the man because he has to prove that he unsuccessfully did everything possible to ascertain the age of the girl beforehand,” Mr Ombeta says.
Fake identity card
The lawyer adds that the only excuse that the man can use is that he tried to prove the age but the girl lied to him about her age and even presented a fake identity card to prove otherwise.
He states that the sentence for such an act varies and can be between 10 and 20 years with the judgment depending on any of the following laws: The Children’s Act, Sexual Offences Act and the Penal Code.
“The sentence varies depending on how one defends himself, but should not be less than the minimum and also not even a day more than the maximum sentence.”
The Sexual Offences Act (2006) provides exhaustive definitions of child sexual abuse in Kenya, including sexual contact with unmarried girls before age 16 and boys before age 12, trafficking, defilement, forced marriage, and incest.
The Act criminalises any person, including a jurist accused of child trafficking or being involved in child sex tourism, child prostitution, or child pornography.
On the other hand, the Children’s Act, 2001, defines a child as anyone under the age of 18 years, and entitles children to protection from all forms of violence and abuse.
He mentions that the girl’s mother tried to drop the case, but was told it was not possible as it was already in court.
Relationship expert Jennifer Karina advises that before getting into a relationship with anyone, find out all you can about them, depending on the type of relationship you intend to have with them.
“Saying that you did not know someone’s age is naive. It is important to know whether the person you intend to date is a child or a grown up,” she says.
Ms Karina says that failing to carry out due diligence should be punished especially if it involves under-age persons as such relationships ruin minors’ lives.
“How do you engage intimately with someone you do not know? They deserve no mercy because they ruin the lives of the young girls.”
The Sexual Offences Act outlines penalties for child sexual abuse, including imprisonment and fines with no legal redress for complainants but Muriungi’s elder brother, Nuru Kithinji, is praying to God to ensure justice is done, maintaining that his brother did nothing wrong.
“He will be locked up for the next six years, that is, until August, 2024 for just being in a relationship with a girl. We are appealing to the government, if possible, to help release the boy as the charges are not true.”
He says that Muriungi left Meru in 2013 to Nairobi and was living with their married sister, but after she relocated to Kitale, the family lost touch with him. They had been in the dark about his whereabouts ever since, to the extent that they believed he had died.
It was not until Sunday, April 22, 2018 when the family was informed of the 33-year-old’s whereabouts by a source Kithinji was not willing to mention as the information was confidential. The source also informed them about prison open days.
They met him on April 26, 2018 for the first time since he was locked up.
“We have suffered a lot looking for Muriungi. Our mother went into depression because of this case. We are happy to have found him alive. This is our first meeting with him since 2013 when he came to Nairobi from Meru,” Mr Kithinji said.